Viera v. United States
| Decision Date | 01 October 2020 |
| Docket Number | No. 18-cv-9270 (KHP),18-cv-9270 (KHP) |
| Parties | JIMMY VIERA, as Administrator of the Estate of MELISSA AVILEZ, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Jimmy Viera brings this suit against the United States of America, pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346, as the Administrator of the Estate of Melissa Avilez. Mr. Viera, on behalf of Ms. Avilez's estate, asserts that employees of Urban Health Plan Inc. ("Urban Health"), a federally-funded health clinic, committed medical malpractice by failing to properly evaluate and timely diagnose Ms. Avilez's breast cancer, resulting in a delayed diagnosis that substantially decreased her chance of survival. Plaintiff seeks damages for the pain and suffering and loss of enjoyment of life experienced by Ms. Avilez between her cancer diagnosis and death, damages stemming from the loss of parental guidance for her eight-year-old son, and economic damages comprising lost earnings and lost household services.
Urban Health treated Ms. Avilez on three relevant occasions: December 16, 2014; February 28, 2015; and August 25, 2015. (See Joint Exhibit 1.) Ms. Avilez also sought treatment from Bronx Lebanon Hospital Center ("Bronx Lebanon") for complaints about her right breast. The relevant treatment at Bronx Lebanon took place between May 18, 2015 and sometime around December 27, 2017. (See Joint Exhibit 2 at BL007, 138 ("JX 2").) Bronx Lebanon ultimately diagnosed Ms. Avilez's breast cancer during a March 6, 2017 biopsy, which they informed her of during a March 16, 2017 visit. (JX 2 at BL093, 101, 126.) She underwent a surgical double mastectomy to remove the cancer on April 19, 2017, at which time there was no detectable metastases. (JX 2 at BL130.) On December 9, 2017, Ms. Avilez was diagnosed with a resurgence of metastatic breast cancer. (JX 2 at BL124-25, 136, 140.) Ms. Avilez passed away on January 14, 2019 at the age of thirty from metastatic breast cancer, leaving behind her partner, Mr. Viera, and their eight-year-old son. (Joint Pretrial Order at Section III, ¶1-2, ECF No. 78 (hereinafter "Stip.").)
From August 10-13, 2020, this Court held a bench trial in this matter.1 The issues tried were whether Urban Health failed to follow the standard of care when treating Ms. Avilez, whether any such failure resulted in a delayed diagnosis that proximately caused her injuries and death, and whether Bronx Lebanon's involvement with Ms. Avilez's breast treatment impacted the duties and standards of care owed by Urban Health to Ms. Avilez. The Court also was asked to address damages to the extent liability is found.2
Plaintiff called four witnesses in her case-in-chief: Jimmy Viera, Ms. Avilez's partner; Aizak Viera, Ms. Avilez's son; expert Dr. Martin Gubernick, an obstetrician/gynecologist; and expert Dr. Alexander Hindenburg, an oncologist. Plaintiff also submitted the de bene esse video deposition testimony of Ms. Avilez, conducted on December 6, 2018, a month before her death. For the defense, the Government called Kerry-Ann DaCosta, Certified Nurse Midwife ("CNM"), who provided care to Ms. Avilez at Urban Health; expert Dr. Syed Hoda, a pathologist; and expertDr. Michael Nathenson, an oncologist. The Government also submitted the deposition testimony of Edwin Santiago, CNM, conducted on August 14, 2019, who also provided care to Ms. Avilez at Urban Health, and a declaration from CNM DaCosta. The parties jointly submitted the following exhibits: Joint Exhibit 1, records of Ms. Avilez's treatment from Urban Health (UH001-07) ("JX 1"); Joint Exhibit 2, records of Ms. Avilez's treatment from Bronx Lebanon (BL001-144) ("JX 2"); and Joint Exhibit 3, Ms. Avilez's autopsy report from New York Presbyterian Hospital (NYP001-13). The Government submitted two additional exhibits: Government Exhibit 1, record of a July 26, 2016 visit by Ms. Avilez to Urban Health (GX1-001-003), and Government Exhibit 2, the ultrasound referral provided by CNM Santiago on February 28, 2015. The Government's exhibits were admitted into evidence without objection from Plaintiff.
This Memorandum Decision and Order constitutes this Court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52. This Court finds for Plaintiff and awards damages in the amounts indicated below.
Federal Rule of Civil Procedure 52(a) provides, in relevant part, that a court conducting a bench trial "must find the facts specially and state its conclusions of law separately," and that "[j]udgment must be entered under Rule 58." Fed. R. Civ. P. 52(a)(1).
Ms. Avilez was born on October 24, 1988 and died on January 14, 2019 as the result of primary angiosarcoma of the breast, a type of breast cancer. (Stip. ¶1.) She is survived by her partner, Mr. Viera, and their son, who was eight years old at the time of her death. (Id. ¶ 2.)
Urban Health is a federally-funded health clinic located in the Bronx, New York, and Bronx Lebanon is a hospital center also located in the Bronx. (Id. ¶ 3.) Registered Physician's AssistantSandra Pineros ("PA Pineros"), CNM Edwin Santiago ("CNM Santiago") and CNM Kerry-Ann DaCosta ("CNM DaCosta") were employees of Urban Health who treated Ms. Avilez during the relevant period. (Id.)
Angiosarcomas are rare cancers that develop in the inner lining of blood vessels, most commonly in the skin, liver, spleen, breast, and deep tissue, and sometimes the lymph vessels. (Trial Testimony of Dr. Syed Hoda, dated August 11, 2020, Tr. at 154:1-5 ("Dr. Hoda Tr."); Trial Testimony of Dr. Michael Nathenson, dated August 12, 2020, Tr. at 9:1-11 ("Dr. Nathenson Tr.").) They are a sub-type of sarcoma, which is a general term for cancers that begin in the bones and in the soft tissue. See https://www.mayoclinic.org/diseases-conditions/sarcoma/symptoms-causes/syc-20351048 (last visited Sept. 29, 2020). Sarcomas represent roughly one percent of all breast cancers diagnosed on an annual basis in women in the United States. (Dr. Hoda Tr. at 154:24-155:5; Dr. Nathenson Tr. at 8:8-11.) Angiosarcomas constitute one percent of all sarcomas. (Dr. Hoda Tr. at 155:22-25; Dr. Nathenson Tr. 9:13-16.) Breast angiosarcomas are further categorized as primary or secondary. (Dr. Hoda Tr. at 156:10-20; Dr. Nathenson Tr. at 9:20-10:12.) A primary angiosarcoma is one that develops with no known risk factors or causes. (Dr. Hoda Tr. at 156:12-15; Dr. Nathenson Tr. at 9:20-10:12, 10:21-11:10.) A secondary angiosarcoma is one that develops after some known carcinogenic event, such as radiation therapy treating some other type of cancer. (Dr. Nathenson Tr. at 9:20-10:8.) Primary angiosarcomas constitute roughly 0.05% of all known breast malignancies recorded annually in the United States, which comes out to roughly 130 women per year using American Cancer Society statistics. (Dr. Hoda Tr. at 156:25-157:2, 157:9-11; Dr. Nathenson Tr. at 9:13-16.) Ms. Avilez was diagnosed with primary angiosarcoma. (Dr. Hoda Tr. at 156:16-20.) She wastwenty-eight years old at the time. (JX 2 at BL093.) The majority of primary breast angiosarcomas cases are observed in women aged forty and older. (Dr. Nathenson Tr. at 95:1-5.)
Breast angiosarcomas are highly aggressive cancers and are labelled according to the highest observed pathologic grade present in a specific sample.3 (Dr. Hoda Tr. at 181:15-20; Dr. Nathenson Tr. at 22:19-23:2.) Grade 2 and 3 cells, which constitute intermediate and high-grade cancer, respectively, indicate a very fast growth rate relative to other cancers. (Dr. Hoda Tr. at 185:7-14.) Angiosarcomas of the breast also tend to modulate or metastasize hematogenously, meaning through the blood, whereas other breast cancer tends to metastasize through the lymph system. (Dr. Hoda Tr. at 174:21-175:6; Dr. Nathenson Tr. at 118:16-119:9.) If angiosarcoma is found in a patient's lymph nodes, this is clear evidence that the angiosarcoma metastasized. (Dr. Nathenson Tr. at 118:16-119:9.) Due to angiosarcomas' aggressiveness and modulation, they often achieve this metastatic state, meaning they spread throughout the body after starting in a given location of the body, quite quickly relative to other cancers. (Dr. Nathenson Tr. at 14:16-15:25.) As a result, the disease is associated with very poor outcomes, particularly in comparison to more common types of breast cancers. (Dr. Hoda Tr. at 174:21-175:6.) The five-year-survival rate for individuals with angiosarcomas discovered when they are five centimeters or larger in size is significantly worse than those discovered at smaller sizes. (Dr. Nathenson Tr. at 99:8-101:1.)
The relevant record begins on December 16, 2014, when Ms. Avilez went to Urban Healthbecause of a sore throat and a non-tender nodule in her right breast that had been present for approximately three days. (See JX 1 at UH006.) Ms. Avilez was twenty-six years old at the time. (Id.) PA Pineros saw Ms. Avilez and conducted an exam, including of Ms. Avilez's head, ears, eyes, nose, throat, neck, heart, and lungs, as well as accounting for her general appearance and body-mass index, which did not reveal any abnormalities or items of note. (JX 1 at UH005.) The testimony and evidence is unclear as to whether PA Pineros attempted to perform a physical examination in which she could feel or "palpate" the lump that Ms. Avilez reported. (See JX 1 at UH006-07; DaCosta Tr. at 43:21-44:25.) Regardless, PA Pineros did not make a record of precisely where in the breast the lump about which Ms. Avilez complained was located. (See JX 1 at UH006-07.) She did inquire about Ms. Avilez's medical history and noted a lack of personal or family history of cancer. (JX 1 at UH006.) PA Pineros concluded that the lump was probably a cyst associated with Ms. Avilez's...
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